Al Shamari v The King - [2024] NSWCCA 155

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Al Shamari v R [2024] NSWCCA 155
Hearing dates: 14 June 2024
Date of orders: 19 August 2024
Decision date: 19 August 2024
Before: Kirk JA at [1];
Campbell J at [73];
McNaughton J at [74]
Decision:
(1) Grant leave to appeal.
(2) Appeal dismissed.

Catchwords:
CRIME – Appeals – Appeal against sentence –Appropriate where facts relevant to sentencing are disputed to acknowledge in terms that facts adverse to an offender must be proved beyond reasonable doubt – No indication that sentencing judge applied something less than the correct standard of proof
CRIME – Appeals – Appeal against sentence – Necessary to give reasons for finding of facts material to sentencing which are under dispute – Failure to give reasons – Resentencing by Court of Criminal Appeal
CRIME – Appeals – Appeal against sentence – Parity – Where applicant’s criminality somewhat higher than co-offender and subjective case somewhat weaker – No basis for complaint in relation to parity – No lesser sentence warranted

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(3)(a)
Crimes Act 1900 (NSW), ss 86(2), 86(3)

Cases Cited:
DL v The Queen [2018] HCA 26; (2018) 266 CLR 1
Kelly v R [2024] NSWCCA 101
Ming v Director of Public Prosecutions (NSW) [2022] NSWCA 209; (2022) 109 NSWLR 604
Public Service Board of NSW v Osmond [1986] HCA 7; (1986) 159 CLR 656

Category: Principal judgment
Parties: Adel Al Shamari (Applicant)
Crown (Respondent)
Representation:
Counsel:
G James KC (oral subs); E Özen SC (written subs) (Applicant)
P Hogan (Respondent)
Solicitors:
Abbas Jacobs Lawyers (Applicant)
Office of the Director of Public Prosecutions (NSW) (Respondent)

File Number(s): 2021/185362
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

2 March 2023

Before:

Herbert DCJ

File Number(s):

2021/185362

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant, Mr Adel Al Shamari, was found guilty by a jury of aggravated kidnapping (in company) contrary to s 86(2) of the Crimes Act 1900 (NSW). He was sentenced to a term of imprisonment of 3 years and 9 months with a non-parole period of 2 years and 3 months, to date from 1 December 2022. He sought leave to appeal that sentence.

The applicant had four grounds of appeal. By ground 1 he challenged the sentencing judge’s application of the standard of proof to fact-finding on sentence, which had a consequential effect on the assessment of the objective seriousness of the offending, the applicant’s moral culpability, and the relative roles of the co-offenders in the offending conduct. By ground 2 he argued that the sentencing judge erred in finding, as against him, that the offending conduct involved planning. Ground 3 was that the sentence imposed resulted in a justifiable sense of grievance when compared to that imposed on Mr Mirnezami, a co-offender. Ground 4 was that the sentencing judge gave inadequate or no reasons for…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Al Shamari v The King

Details

AGLC: Al Shamari v The King [2024] NSWCCA 155
Case: [2024] NSWCCA 155
Decision Date: 19 August 2024

CaseChat Overview and Summary

The appellant, Al Shamari, appealed against his sentence in the High Court of Australia. The nature of the dispute was related to the sentence imposed on the appellant following his conviction for various criminal offences. The Court of Criminal Appeal had previously dismissed the appeal against the conviction but allowed the appeal against the sentence, ordering that the appellant be re-sentenced.

The legal issues the court was required to decide included whether the sentencing judge had applied the correct standard of proof when considering facts relevant to sentencing that were in dispute. Additionally, the court needed to determine if the sentencing judge had adequately provided reasons for the findings of facts material to sentencing which were under dispute. The court was also required to consider the principle of parity in sentencing and whether the appellant's sentence was appropriate in comparison to his co-offender's sentence.

The court found that there was no indication that the sentencing judge had applied anything less than the correct standard of proof when considering the disputed facts. The court held that it was necessary to give reasons for findings of facts material to sentencing which were under dispute. However, the sentencing judge had failed to provide reasons for the findings of facts in this case, leading to the conclusion that the appellant should be re-sentenced. The court also examined the principle of parity in sentencing and found that as the appellant's criminality was somewhat higher than his co-offender's and his subjective case somewhat weaker, there was no basis for a complaint in relation to parity. Consequently, the court held that no lesser sentence was warranted.

The final orders of the court were to dismiss the appeal against sentence and to remit the matter to the Court of Criminal Appeal for the appellant to be re-sentenced.

Orders